96-16650. Protection of Archaeological Resources  

  • [Federal Register Volume 61, Number 131 (Monday, July 8, 1996)]
    [Rules and Regulations]
    [Pages 35666-35673]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-16650]
    
    
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    OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION
    
    25 CFR Part 700
    
    
    Protection of Archaeological Resources
    
    AGENCY: Office of Navajo and Hopi Indian Relocation.
    
    ACTION: Interim final rule with comment period.
    
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    SUMMARY: This rule establishes procedures for implementing provisions 
    of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470-
    aa-11) for the lands which are administered by the O.N.H.I.R. and have 
    been acquired pursuant to Public Law 96-305 (25 U.S.C. 640-d(h). The 
    rule is necessary and its intended effect is to allow the Federal Land 
    Manager to protect archaeological resources on lands being developed 
    for resettlement purposes.
    
    DATES: This rule is effective August 7, 1996.
        Comments must be received on or before August 7, 1996.
    
    ADDRESSES: Comments may be mailed to the Executive Director, Office of 
    Navajo and Hopi Indian Relocation, P.O. Box KK, Flagstaff, Arizona 
    86002.
    
    FOR FURTHER INFORMATION CONTACT:
    Paul Tessler (Legal Counsel), Office of Navajo and Hopi Indian 
    Relocation, at 520-779-8953.
    
    SUPPLEMENTARY INFORMATION: Pub. L. 96-305 (25 U.S.C. 640d-11) provided 
    for the acquisition of land for the use of Navajo families required to 
    relocate under the terms of Pub. L. 93-531. Approximately 365,000 acres 
    of land in Arizona have been acquired, taken into trust, and made part 
    of the Navajo Reservation. Approximately 35,000 acres of land in the 
    State of New Mexico will be acquired, taken into trust and made a part 
    of the Navajo Reservation. These lands are referred to as the New 
    Lands. Pursuant to Pub. L. 96-305, as amended, by Pub. L. 100-666, the 
    Office of Navajo and Hopi Indian Relocation (O.N.H.I.R.) has complete 
    administrative authority over these New Lands until the relocation 
    program is completed as determined by the President.
        The 1986 Interior Appropriations Bill (Pub. L. 99-190) provided 
    construction funds to the Bureau of Indian Affairs for the purpose of 
    building replacement homes on the New Lands. A number of relocations 
    were completed at the New Lands under the authority of the Bureau of 
    Indian Affairs. In 1988, Congress enacted Pub. L. 100-666, which 
    transferred to the O.N.H.I.R. on January 31, 1989, all powers and 
    duties of the Bureau of Indian Affairs derived from Pub. L. 99-190, 
    that related to the relocation of members of the Navajo Tribe and also 
    transferred all funds appropriated for such activities relating to such 
    relocation. Before the passage of Pub. L. 100-666, the O.N.H.I.R. and 
    the Bureau of Indian Affairs had worked together planning and 
    developing the New Lands for resettlement purposes and relied upon the 
    Bureau of Indian Affairs, to issue Archaeological Resources Protection 
    Act (16 U.S.C. 470aa-11) permits on the New Lands. After the passage of 
    Pub. L. 100-666, and the transfer of all powers and duties of the 
    Bureau of Indian Affairs to the O.N.H.I.R., questions arose regarding 
    which governmental agency was the Federal Land Manager and has the 
    authority to issue A.R.P.A. permits on the New Lands. It was determined 
    that the O.N.H.I.R. is the Federal Land Manager on the New Lands and 
    that the Bureau of Indian Affairs, Navajo Area Office, did not have 
    administrative jurisdiction or surface management responsibilities on 
    the New Lands located in Arizona. Thus the O.N.H.I.R. has the 
    appropriate authority to issue A.R.P.A. permits. These regulations are 
    being published pursuant to that authority to allow the Federal Land 
    Manager to protect archaeological resources on the New Lands by issuing 
    permits for authorized excavation and/or removal of archaeological 
    resources, by imposing civil penalties for unauthorized excavation, 
    removal, damage, alteration, or defacement of archaeological resources, 
    by providing for the preservation of archaeological resource 
    collections and data and by ensuring confidentiality of information 
    about archaeological resources when disclosure would threaten the 
    resources. These regulations will apply to all New Lands in the states 
    or Arizona and New Mexico acquired for relocation purposes.
        These regulations are being published as an Interim Final Rule 
    because of the time frame involved in the movement of eligible 
    individuals to the New Lands. Because the O.N.H.I.R. has been requested 
    by Congress in the 1995 Department of Interior and Related Agencies 
    Appropriations Act (Pub. L. 103-332) to present a plan for the phase 
    out of the relocation program, and transfer of its functions before the 
    year 2000, there is considerable urgency to complete the development of 
    the New Lands. In order to complete such development the O.N.H.I.R. 
    must publish these regulations. It is, therefore, necessary for these 
    regulations to become effective immediately so that development can go 
    on uninterrupted.
        The principal author of this final rulemaking is Paul Tessler, 
    Legal counsel, Office of Navajo and Hopi Indian Relocation.
    
    List of Subjects in 25 CFR Part 700
    
        Administrative practice and procedure, Conflict of interest, 
    Freedom of information, Grant program--Indians, Indian claims, Privacy, 
    Real property acquisition, Relocation Assistance and New Lands 
    Administration.
    
    PART 700--[AMENDED]
    
        Accordingly, the Office is amending 25 CFR Part 700, by adding 
    Subpart R, as follows:
        1. The authority citation for Part 700 continues to read as 
    follows:
    
    
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        Authority Pub. L. 99-590; Pub. L. 93-531; 88 Stat. 1712, as 
    amended by Pub. L. 96-305, 94 Stat. 929; Pub. L. 100-666, 102 Stat. 
    3929 (25 U.S.C. 640d).
    
        2. 25 CFR, Part 700, is amended by adding Subpart R, Protection of 
    Archaeological Resources, as follows:
    
    Subpart R--Protection of Archaeological Resources
    
    Sec.
    700.801  Purpose.
    700.803  Authority.
    700.805  Definitions.
    700.807  Prohibited acts.
    700.809  Permit requirements and exceptions.
    700.811  Application for permits and information collection.
    700.813  Notification to Indian Tribes of possible harm to, 
    destruction of, sites on the New Lands having religious or cultural 
    importance.
    700.815  Issuance of permits.
    700.817  Terms and conditions of permits.
    700.819  Suspension and revocation of permits.
    700.821  Appeals relating to permits.
    700.823  Relationship to section 106 of the National Historic 
    Preservation Act.
    700.825  Custody of archaeological resources.
    700.827  Determination of archaeological or commercial value and 
    cost of restoration and repair.
    700.829  Assessment of civil penalties.
    700.831  Civil penalty amounts.
    700.833  Other penalties and rewards.
    700.835  Confidentiality of archaeological resource information.
    700.837  Report.
    700.839  Permitting procedures for Navajo Nation Lands.
    
    Subpart R--Protection of Archaeological Resources
    
    
    Sec. 700.801  Purpose.
    
        (a) The regulations in this subpart implement provisions of the 
    Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-11) by 
    establishing the uniform definitions, standards, and procedures to be 
    followed by the O.N.H.I.R. New Lands Manager in providing protection 
    for archaeological resources, located on the New Lands. The regulations 
    enable Federal land managers to protect archaeological resources, 
    taking into consideration provisions of the American Indian Religious 
    Freedom Act (92 Stat. 469: 43 U.S.C. 1996), through permits authorizing 
    excavation and/or removal of archaeological resources, through civil 
    penalties for unauthorized excavation and/or removal, through 
    provisions for the preservation of archaeological resource collections 
    and data, and through provisions for ensuring confidentiality of 
    information about archaeological resources.
        (b) The regulations in this part do not impose any new restrictions 
    on activities permitted under other laws, authorities, and regulations 
    relating to mining, mineral leasing, reclamation, and other multiple 
    uses of the public lands.
    
    
    Sec. 700.803  Authority.
    
        The regulations in this part are promulgated pursuant to section 
    10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
    470ii). Section 10(b) of the Act (16 U.S.C. 470ii) provides that each 
    Federal land manager shall promulgate such rules and regulations, 
    consistent with the uniform rules and regulations in this part, as may 
    be necessary for carrying out the purposes of the Act.
    
    
    Sec. 700.805  Definitions.
    
        As used for purposes of this part:
        (a) Archaeological resource means any material remains of human 
    life or activities which are at least 100 years of age, and which are 
    of archaeological interest.
        (1) Of archaeological interest means capable of providing 
    scientific or humanistic understandings of past human behavior, 
    cultural adaptation, and related topics through the application of 
    scientific or scholarly techniques such as controlled observation, 
    contextual measurement, controlled collection, analysis, interpretation 
    and explanation.
        (2) Material remains means physical evidence of human habitation, 
    occupation, use, or activity, including the site, location or context 
    in which such evidence is situated.
        (3) The following classes of material remains (and illustrative 
    examples), if they are at least 100 years of age, are of archaeological 
    interest and shall be considered archaeological resources unless 
    determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
    section.
        (i) Surface or subsurface structures, shelters, facilities, or 
    features (including, but not limited to, domestic structures, storage 
    structures, cooking structures, ceremonial structures, artificial 
    mounds, earthworks, fortifications, canals, reservoirs, horticultural/
    agricultural gardens or fields, bedrock mortars, or grinding surfaces, 
    rock alignments, cairns, trails, borrow pits, cooking pits, refuse 
    pits, burial pits, or graves, hearths, kilns, post molds, wall 
    trenches, middens);
        (ii) Surface or subsurface artifact concentrations or scatters;
        (iii) Whole or fragmentary tools, implements, containers, weapons, 
    and weapon projectiles, clothing, and ornaments (including, but not 
    limited to pottery and other ceramics, cordage, basketry and other 
    weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
    hide, feathers, pigments, and flaked ground or pecked stone);
        (iv) By-products, waste products, or debris resulting from 
    manufacture or use of human-made or natural materials;
        (v) Organic waste (including, but not limited to vegetal and animal 
    remains, coprolites);
        (vi) Human remains (including, but not limited to, bone, teeth, 
    mummified flesh, burials, cremations);
        (vii) Rock carvings, rock paintings, intaglios, and other works of 
    artistic or symbolic representation;
        (viii) Rockshelters and caves or portions thereof containing any of 
    the material remains described in this paragraph (a);
        (ix) All portions of shipwrecks (including, but not limited to 
    armaments, apparel, tackle, cargo);
        (x) Any portion or piece of material remains described in this 
    paragraph (a).
        (4) The following material remains shall not be considered of 
    archaeological interest, and shall not be considered to be 
    archaeological resources for purposes of the Act and this part, unless 
    found in a direct physical relationship with archaeological resources 
    as defined in this section:
        (i) Paleontological remains;
        (ii) Coins, bullets, and unworked minerals and rocks.
        (5) The Federal Land Manager may determine that certain material 
    remains, in specified areas under the Federal Land Manager's 
    jurisdiction and under specified circumstances, are not or are no 
    longer of archaeological interest and are not to be considered 
    archaeological resources under this part. Any determination made 
    pursuant to this paragraph (a)(5) shall be documented. Such 
    determination shall in no way affect the Federal Land Manager's 
    obligations under other applicable laws or regulations.
        (b) Arrowhead means any projectile point which appears to have been 
    designed for use with an arrow.
        (c) Commissioner means the Commissioner of the Office of Navajo and 
    Hopi Indian Relocation. Reference to approval of other action by the 
    Commissioner will also include approval or other action by another 
    Federal Officer under delegated authority from the Commissioner.
        (d) Federal Land Manager means, with respect to the New Lands, the 
    Commissioner of Navajo and Hopi Indian Relocation, having primary 
    management authority over such lands,
    
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    including persons to whom such management authority has been officially 
    delegated.
        (e) New Lands means the land acquired for the use of relocatees 
    under the authority of Public Law 96-305, 25 U.S.C., 640(d)-10. These 
    lands include the 250,000 acres of land acquired by the Navajo and Hopi 
    Indian Relocation Commission and added to the Navajo Reservation, 
    150,000 acres of private lands previously owned by the Navajo Nation in 
    fee and taken in trust by the United States pursuant to 25 U.S.C. 640d-
    10 and up to 35,000 acres of land in the State of New Mexico to be 
    acquired and added to the Navajo Reservation.
        (f) Indian lands means lands of The Navajo Nation, which are either 
    held in trust by the United States or subject to a restriction against 
    alienation imposed by the United States, except for subsurface 
    interests not owned or controlled by an Indian tribe or Indian 
    individual.
        (g) Indian tribe or Tribe means The Navajo Nation.
        (h) Person means an individual, corporation, partnership, trust, 
    institution, association, or any other private entity, or any officer, 
    employee, agent, department, or instrumentality of the United States, 
    or of any Indian tribe, or of any State or political subdivision 
    thereof.
        (i) State means any of the fifty states, the District of Columbia, 
    Puerto Rico, Guam, and the Virgin Islands.
        (j) Tribe means the Navajo Nation.
        (k) Act means the Archaeological Resources Protection Act of 1979 
    (16 U.S.C. 470-aa11.)
    
    
    Sec. 700.807  Prohibited acts.
    
        (a) No person may excavate, remove, damage or otherwise alter or 
    deface any archaeological resource located on the New Lands or Indian 
    lands unless such activity is pursuant to a permit issued under 
    Sec. 700.815 or exempted by Sec. 700.809(b) of this part.
        (b) No person may sell, purchase, exchange, transport, or receive 
    any archaeological resource, if such resource was excavated or removed 
    in violation of:
        (1) The prohibitions contained in paragraph (a) of this section; or
        (2) Any provision, rule, regulation, ordinance, or permit in effect 
    under any other provision of Federal law.
    
    
    Sec. 700.809  Permit requirements and exceptions.
    
        (a) Any person proposing to excavate and/or remove archaeological 
    resources from the New Lands or Indian lands, and to carry out 
    activities associated with such excavation and/or removal, shall apply 
    to the Federal Land Manager for a permit for the proposed work, and 
    shall not begin the proposed work until a permit has been issued. The 
    Federal Land Manager may issue a permit to any qualified person, 
    subject to appropriate terms and conditions, provided that the person 
    applying for a permit meets conditions in Sec. 700.815(a) of this part.
        (b) Exceptions: (1) No permit shall be required under this part for 
    any person conducting activities on the New Lands under other permits, 
    leases, licenses, or entitlements for use, when those activities are 
    exclusively for purposes other than the excavation and/or removal of 
    archaeological resources, even though those activities might 
    incidentally result in the disturbance of archaeological resources. 
    General earth-moving excavation conducted under a permit or other 
    authorization shall not be construed to mean excavation and/or removed 
    as used in this part. This exception does not, however, affect the 
    Federal Land Manager's responsibility to comply with other authorities 
    which protect archaeological resources prior to approving permits, 
    leases, licenses or entitlements for use; any excavation and/or removal 
    of archaeological resources required for compliance with those 
    authorities shall be conducted in accordance with the permit 
    requirements of this part.
        (2) No permit shall be required under this part for any person 
    collecting for private purposes any rock, coin, bullet, or mineral 
    which is not an archaeological resource as defined in this part, 
    provided that such collecting does not result in disturbance of any 
    archaeological resource.
        (3) No permit shall be required under this part or under section 3 
    of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
    removal by any Indian tribe or member thereof of any archaeological 
    resource located on Indian lands of such Indian tribe, except that in 
    the absence of tribal law regulating the excavation or removal of 
    archaeological resources on Indian lands, an individual tribal member 
    shall be required to obtain a permit under this part;
        (4) No permit shall be required under this part for any person to 
    carry out any archaeological activity authorized by a permit issued 
    under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
    enactment of the Archaeological Resources Protection Act of 1979. Such 
    permit shall remain in effect according to its terms and conditions 
    until expiration.
        (5) No permit shall be required under section 3 of the Act of June 
    8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
    is issued under this part.
        (c) Persons carrying out official agency duties under the Federal 
    Land Manager's direction, associated with the management of 
    archaeological resources, need not follow the permit application 
    procedures of Sec. 700.811. However, the Federal Land Manager shall 
    insure that provisions of Secs. 700.815 and 700.817 have been met by 
    other documented means and that any official duties which might result 
    in harm to or destruction of any Indian tribal religious or cultural 
    site, as determined by the Federal Land Manager, have been the subject 
    of consideration under Sec. 700.813.
        (d) Upon the written request of the Governor of any State, on 
    behalf of the State or its educational institutions, the Federal Land 
    Manager shall issue a permit, subject to the provisions of 
    Secs. 700.809(b)(5), 700.813, 700.815(a) (3), (4), (5), (6), and (7), 
    700.817, 700.819, 700.823, 700.825(a), to such Governor or to such 
    designee as the Governor deems qualified to carry out the intent of the 
    Act, for purposes of conducting archaeological research, excavating, 
    and/or removing archaeological resources, and safeguarding and 
    preserving any materials and data collected in a university, museum, or 
    other scientific or educational institution approved by the Federal 
    Land Manager.
        (e) Under other statutory, regulatory, or administrative 
    authorities governing the use of the New Lands and Indian lands, 
    authorizations may be required for activities which do not require a 
    permit under this part. Any person wishing to conduct on the New Lands 
    or Indian lands any activity related to but believed to fall outside 
    the scope of this part should consult with the Federal Land Manager, 
    for the purpose of determining whether any authorization is required, 
    prior to beginning such activities.
    
    
    Sec. 700.811  Application for permits and information collection.
    
        (a) Any person may apply to the appropriate Federal Land Manager 
    for a permit to excavate and/or remove archaeological resources from 
    the New Lands or Indian lands and to carry out activities associated 
    with such excavation and/or removal.
        (b) Each application for a permit shall include:
        (1) The nature and extent of the work proposed, including how and 
    why it is proposed to be conducted, proposed time of performance, 
    location maps, and
    
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    proposed outlet for public written dissemination of the results.
        (2) The name and address of the individual(s) proposed to be 
    responsible for conducting the work, institutional affiliation, if any, 
    and evidence of education, training and experience in accord with the 
    minimal qualifications listed in Sec. 700.815(a).
        (3) The name and address of the individual(s), if different from 
    the individual(s) named in paragraph (b)(2) of this section, proposed 
    to be responsible for carrying out the terms and conditions of the 
    permit.
        (4) Evidence of the applicant's ability to initiate, conduct and 
    complete the proposed work, including evidence of logistical support 
    and laboratory facilities.
        (5) Where the application is for the excavation and/or removal of 
    archaeological resources on the New Lands, the names of the university, 
    museum, or other scientific or educational institution in which the 
    applicant proposes to store all collections, and copies of records, 
    data, photographs, and other documents derived from the proposed work. 
    Applicants shall submit written certification, signed by an authorized 
    official of the institution, of willingness to assume curatorial 
    responsibility for the collections, records, data, photographs and 
    other documents and to safeguard and preserve these materials as 
    property of the Navajo Nation.
        (6) Where the application is for the excavation and/or removal of 
    archaeological resources on Indian lands, the name of the university, 
    museum, or other scientific or educational institution in which the 
    applicant proposes to store copies of records, data, photographs, and 
    other documents derived from the proposed work, and all collections in 
    the event the Indian owners do not wish to take custody or otherwise 
    dispose of the archaeological resources. Applicants shall submit 
    written certification, signed by an authorized official of the 
    institution, of willingness to assume curatorial responsibility for the 
    collections, if applicable, and/or the records, data, photographs, and 
    other documents derived from the proposed work.
        (c) The Federal Land Manager may require additional information, 
    pertinent to land management responsibilities, to be included in the 
    application for permit and shall so inform the applicant.
        (d) Paperwork Reduction Act. The information collection requirement 
    contained in Sec. 700.811 has been approved by the Office of Management 
    and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 
    1024-0037. The purpose of the information collection is to meet 
    statutory and administrative requirements in the public interest. The 
    information will be used to assist Federal land managers in determining 
    that applicants for permits are qualified, that the work proposed would 
    further archaeological knowledge, that archaeological resources and 
    associated records and data will be property preserved, and that the 
    permitted activity would not conflict with the management of the New 
    Lands involved. Response to the information requirement is necessary in 
    order for an applicant to obtain a benefit.
    
    
    Sec. 700.813  Notification to Indian tribes of possible harm to, or 
    destruction of, sites on the New Lands having religious or cultural 
    importance.
    
        (a) If the issuance of a permit under this part may result in harm 
    to, or destruction of, any Indian tribal religious or cultural site on 
    the New Lands, as determined by the Federal Land Manager, at least 30 
    days before issuing such permit the Federal Land Manager shall notify 
    any Indian tribe which may consider the site as having religious or 
    cultural importance. Such notice shall not be deemed a disclosure to 
    the public for purposes of section 9 of the Act.
        (1) Notice by the Federal Land Manager to any Indian tribe shall be 
    sent to the chief executive officer or other designated official of the 
    tribe. Indian tribes are encouraged to designate a tribal official to 
    be the focal point for any notification and discussion between the 
    tribe and the Federal Land Manager.
        (2) The Federal Land Manager may provide notice to any other Native 
    American group that is known by the Federal Land Manager to consider 
    sites potentially affected as being of religious or cultural 
    importance.
        (3) Upon request during the 30-day period, the Federal Land Manager 
    may meet with official representatives of any Indian tribe or group to 
    discuss their interests, including ways to avoid or mitigate potential 
    harm or destruction such as excluding sites from the permit area. Any 
    mitigation measures which are adopted shall be incorporated into the 
    terms and conditions of the permit under Sec. 700.817.
        (4) When the Federal Land Manager determines that a permit applied 
    for under this part must be issued immediately because of an imminent 
    threat or loss or destruction of an archaeological resource, the 
    Federal Land Manager shall so notify the appropriate tribe
        (b) (1) In order to identify sites of religious or cultural 
    importance, the Federal Land Manager shall seek to identify all Indian 
    tribes having aboriginal or historic ties to the lands under the 
    Federal Land Manager's jurisdiction and seek to determine, from the 
    chief executive officer or other designated official of any such tribe, 
    the location and nature of specific sites of religious or cultural 
    importance so that such information may be on file for land management 
    purposes. Information on sites eligible for or included in the National 
    Register of Historic Places may be withheld from public disclosure 
    pursuant to section 304 of the Act of October 15, 1966, as amended (16 
    U.S.C. 470w-3).
        (2) If the Federal Land Manager becomes aware of a Native American 
    group that is not an Indian tribe as defined in this part but has 
    aboriginal or historic ties to the New Lands under the Federal Land 
    Manager's jurisdiction, the Federal Land Manager may seek to 
    communicate with official representatives of that group to obtain 
    information on sites they may consider to be of religious or cultural 
    importance.
        (3) The Federal Land Manager may enter into agreement with any 
    Indian tribe or other Native American group for determining locations 
    for which such tribe or group wishes to receive notice under this 
    section.
    
    
    Sec. 700.815  Issuance of permits.
    
        (a) The Federal Land Manager may issue a permit, for a specified 
    period of time appropriate to the work to be conducted, upon 
    determining that:
        (1) The applicant is appropriately qualified, as evidenced by 
    training, education, and/or experience, and possesses demonstrable 
    competence in archaeological theory and methods, and in collecting, 
    handling, analyzing, evaluating, and reporting archaeological data, 
    relative to the type and scope of the work proposed, and also meets the 
    following minimum qualifications:
        (i) A graduate degree in anthropology or archaeology, or equivalent 
    training and experience;
        (ii) The demonstrated ability to plan, equip, staff, organize, and 
    supervise activity of the type and scope proposed;
        (iii) The demonstrated ability to carry research to completion, as 
    evidenced by timely completion of theses, research reports, or similar 
    documents;
        (iv) Completion of at least 16 months of professional experience 
    and/or specialized training in archaeological field, laboratory, or 
    library research,
    
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    administration, or management, including at least 4 months experience 
    and/or specialized training in the kind of activity the individual 
    proposes to conduct under authority of the permit; and
        (v) Applicants proposing to engage in historical archaeology should 
    have at least one year of experience in research concerning 
    archaeological resources of the historic period. Applicants proposing 
    to engage in prehistoric archaeology should have had at least one year 
    of experience in research concerning archaeological resources of the 
    prehistoric period.
        (2) The proposed work is to be undertaken for the purpose of 
    furthering archaeological knowledge in the public interest, which may 
    include but need not be limited to, scientific or scholarly research, 
    and preservation of archaeological data;
        (3) The proposed work, including time, scope, location, and 
    purpose, is not inconsistent with any management plan or established 
    policy, objectives, or requirements applicable to the management of the 
    public lands concerned;
        (4) Where the proposed work consists of archaeological survey and/
    or data recovery undertaken in accordance with other approved uses of 
    the New Lands or Indian lands, and the proposed work has been agreed to 
    in writing by the Federal Land Manager, pursuant to section 106 of the 
    National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) 
    and (a)(3) of this section shall be deemed satisfied by the prior 
    approval.
        (5) Written consent has been obtained, for work proposed on Indian 
    lands, from the Indian land owner and the Indian tribe having 
    jurisdiction over such lands;
        (6) Evidence is submitted to the Federal Land Manager that any 
    university, museum, or other scientific or educational institution 
    proposed in the application as the repository possesses adequate 
    curatorial capability for safeguarding and preserving the 
    archaeological resources and all associated records; and
        (7) The applicant has certified that, not later than 980 days after 
    the date the final report is submitted to the Federal Land Manager, the 
    following will be delivered to the appropriate official of the approved 
    university, museum, or other scientific or educational institution, 
    which shall be named in the permit;
        (i) All artifacts, samples, collections, and copies of records, 
    data, photographs, and other documents resulting from work conducted 
    under the requested permit where the permit is for the excavation and/
    or removal of archaeological resources from the New Lands.
        (ii) All artifacts, samples, and collections resulting from work 
    under the requested permit for which the custody or disposition is not 
    undertaken by the Indian owners, and copies of records, data, 
    photographs, and other documents resulting from work conducted under 
    the requested permit, where the permit is for the excavation and/or 
    removal of archaeological resources from Indian lands.
        (b) When the area of the proposed work would cross jurisdictional 
    boundaries, so that permit applications must be submitted to more than 
    one Federal land manager, the Federal land managers shall coordinate 
    the review and evaluation of applications and the issuance of permits.
    
    
    Sec. 700.817  Terms and conditions of permits.
    
        (a) In all permits issued, the Federal Land Manager shall specify:
        (1) The nature and extent of work allowed and required under the 
    permit, including the time, duration, scope, location and purpose of 
    the work;
        (2) The name of the individual(s) responsible for conducting the 
    work and, if different, the name of the individual(s) responsible for 
    carrying out the terms and conditions of the permit;
        (3) The name of any university, museum, or other scientific or 
    educational institution in which any collected materials and data shall 
    be deposited; and
        (4) Reporting requirements.
        (b) The Federal Land Manager may specify such terms and conditions 
    as deemed necessary, consistent with this part, to protect public 
    safety and other values and/or resources, to secure work areas to 
    safeguard other legitimate land uses, and to limit activities 
    incidental to work authorized under a permit.
        (c) The Federal Land Manager shall include in permits issued for 
    archaeological work on Indian lands such terms and conditions as may be 
    requested by the Indian landowner and the Indian tribe having 
    jurisdiction over the lands, and for archaeological work on the New 
    Lands shall include such terms and conditions as may have been 
    developed pursuant to Sec. 700.813.
        (d) Initiation of work or other activities under the authority of a 
    permit signifies the permittee's acceptance of the terms and conditions 
    of the permit.
        (e) The permittee shall not be released from requirements of a 
    permit until all outstanding obligations have been satisfied, whether 
    or not the term of the permit has expired.
        (f) The permittee may request that the Federal Land Manager extend 
    or modify a permit.
        (g) The permittee's performance under any permit issued for a 
    period greater than 1 year shall be subject to review by the Federal 
    Land Manager, at least annually.
    
    
    Sec. 700.819  Suspension and revocation of permits.
    
        (a) Suspension or revocation for cause. (1) The Federal Land 
    Manager may suspend a permit issued pursuant to this part upon 
    determining that the permittee has failed to meet any of the terms and 
    conditions of the permit or has violated any prohibition of the Act of 
    Sec. 700.807. The Federal Land Manager shall provide written notice to 
    the permittee of suspension, the cause thereof, and the requirements 
    which must be met before the suspension will be removed.
        (2) The Federal Land Manager may revoke a permit upon assessment of 
    a civil penalty under Sec. 700.829 upon the permittee's conviction 
    under section 6 of the Act, or upon determining that the permittee has 
    failed after notice under this section to correct the situation which 
    led to suspension of the permit.
        (b) Suspension or revocation for management purposes. The Federal 
    Land Manager may suspend or revoke a permit without liability to the 
    United States, its agents, or employees when continuation of work under 
    the permit would be in conflict with management requirements not in 
    effect when the permit was issued. The Federal Land Manager shall 
    provide written notice to the permittee stating the nature of and basis 
    for the suspension or revocation.
    
    
    Sec. 700.821  Appeals relating to permits.
    
        Any affected person may appeal permit issuance, denial of permit 
    issuance, suspension, revocation, and terms and conditions of a permit 
    through existing administrative appeal procedures, or through 
    procedures which may be established by the Federal Land Manager 
    pursuant to section 10(b) of the Act and this part.
    
    
    Sec. 700.823  Relationship to section 106 of the National Historic 
    Preservation Act.
    
        Issuance of a permit in accordance with the Act and this part does 
    not constitute an undertaking requiring compliance with Section 106 of 
    the Act of October 15, 1996 (16 U.S.C. 470f). However, the mere 
    issuance of such a permit does not excuse the Federal Land Manager from 
    compliance with section 106 where otherwise required.
    
    [[Page 35671]]
    
    Sec. 700.825  Custody of archaeological resources.
    
        (a) Archaeological resources excavated or removed from public lands 
    remain the property of the Navajo Nation.
        (b) Archaeological resources excavated or removed from Indian lands 
    remain the property of the Indian or Indian tribe having rights of 
    ownership over such resources.
    
    
    Sec. 700.827  Determination of archaeological or commercial value and 
    cost of restoration and repair.
    
        (a) Archaeolgical value. For purposes of this part, the 
    archaeological value of any archaeological resource involved in a 
    violation of the prohibitions in Sec. 700.807 of this part or 
    conditions of a permit issued pursuant to this part shall be the value 
    of the information associated with the archaeological resource. This 
    value shall be appraised in terms of the costs of the retrieval of the 
    scientific information which would have been obtained prior to the 
    violation. These costs may include, but need not be limited to, the 
    cost of preparing a research design, conducting field work, carrying 
    out laboratory analysis, and preparing reports as would be necessary to 
    realize the information potential.
        (b) Commercial value. For purposes of this part, the commercial 
    value of any archaeological resource involved in a violation of the 
    prohibitions in Sec. 700.807 of this part or conditions of a permit 
    issued pursuant to this part shall be for its fair market value. Where 
    the violation has resulted in damage to the archaeological resource, 
    the fair market value should be determined using the condition of the 
    archaeological resource prior to the violation to the extent that its 
    prior condition can be ascertained.
        (c) Cost of restoration and repair. For purposes of this part, the 
    cost of restoration and repair of archaeological resources damages as a 
    result of a violation or prohibitions or conditions pursuant to this 
    part, shall be the sum of the costs already incurred for emergency 
    restoration or repair work, plus those costs projected to be necessary 
    to complete restoration and repair, which may include, but need not be 
    limited to, the costs of the following.
        (1) Reconstruction of the archaeological resource;
        (2) Stabilization of the archaeological resource;
        (3) Ground contour reconstruction and surface stabilization;
        (4) Research necessary to carry out reconstruction or 
    stabilization;
        (5) Physical barriers or other protective devices, necessitated by 
    the disturbance of the archaeological resource, to protect it from 
    further disturbance;
        (6) Examination and analysis of the archaeological resource 
    including recording remaining archaeological information, where 
    necessitated by disturbance, in order to salvage remaining values which 
    cannot be otherwise conserved;
        (7) Reinterment of human remains in accordance with religious 
    custom and State, local, or tribal law, where appropriate, as 
    determined by the Federal Land Manager.
        (8) Preparation of reports relating to any of the above activities.
    
    
    Sec. 700.829  Assessment of civil penalties.
    
        (a) The Federal Land Manager may assess a civil penalty against any 
    person who has violated any prohibition contained in Sec. 700.807 or 
    who has violated any term or condition included in a permit issued in 
    accordance with the Act and this part.
        (b) Notice of violation. The Federal Land Manager shall serve a 
    notice of violation upon any person believed to be subject to a civil 
    penalty, either in person or by registered or certified mail (return 
    receipt requested). The Federal Land Manager shall include in the 
    notice:
        (1) A concise statement of the facts believed to show a violation;
        (2) A specific reference to the provision(s) of this part or to a 
    permit issued pursuant to this part allegedly violated;
        (3) The amount of penalty proposed to be assessed, including any 
    initial proposal to mitigate or remit where appropriate, or a statement 
    that notice of the proposed penalty amount will be served after the 
    damages associated with the alleged violation have been ascertained;
        (4) Notification of the right to file a petition for relief 
    pursuant to paragraph (d) of this section, or to await the Federal Land 
    Manager's notice of assessment, and to request a hearing in accordance 
    with paragraph (g) of this section. The notice shall also inform the 
    person of the right to seek judicial review of any final administrative 
    decision assessing a civil penalty.
        (c) The person served with a notice of violation shall have 45 
    calendar days from the date of its service (or the date of service of a 
    proposed penalty amount, if later) in which to respond. During this 
    time the person may:
        (1) Seek informal discussions with the Federal Land Manager;
        (2) File a petition for relief in accordance with paragraph (d) of 
    this section;
        (3) Take no action and await the Federal Land Manager's notice of 
    assessment;
        (4) Accept in writing or by payment the proposed penalty, or any 
    mitigation or remission offered in the notice. Acceptance of the 
    proposed penalty or mitigation or remission shall be deemed a waiver of 
    the notice of assessment and of the right to request a hearing under 
    paragraph (g) of this section.
        (d) Petition for relief. The person served with a notice of 
    violation may request that no penalty be assessed or that the amount be 
    reduced, by filing a petition for relief with the Federal Land Manager 
    within 45 calendar days of the date of service of the notice of 
    violation (or of a proposed penalty amount, if later). The petition 
    shall be in writing and signed by the person served with the notice of 
    violation. If the person is a corporation, the petition must be signed 
    by an officer authorized to sign such documents. The petition shall set 
    forth in full the legal or factual basis for the requested relief.
        (e) Assessment of penalty. (1) The Federal Land Manager shall 
    assess a civil penalty upon expiration of the period for filing a 
    petition for relief, upon completion of review of any petition filed, 
    or upon completion of informal discussions, whichever is later.
        (2) The Federal Land Manager shall take into consideration all 
    available information, including information provided pursuant to 
    paragraphs (c) and (d) of this section or furnished upon further 
    request by the Federal Land Manager.
        (3) If the facts warrant a conclusion that no violation has 
    occurred, the Federal Land Manger shall so notify the person served 
    with a notice of violation, and no penalty shall be assessed.
        (4) Where the facts warrant a conclusion that a violation has 
    occurred, the Federal Land Manager shall determine a penalty amount in 
    accordance with Sec. 700.831.
        (f) Notice of assessment. The Federal Land Manager shall notify the 
    person served with a notice of violation of the penalty amount assessed 
    by serving a written notice of assessment, either in person or by 
    registered or certified mail (return receipt requested). The Federal 
    Land Manager shall include the following in the notice of assessment.
        (1) The facts and conclusions from which it was determined that a 
    violation did occur;
        (2) The basis in Sec. 700.831 for determining the penalty amount 
    assessed and/or any offer to mitigate or remit the penalty; and
        (3) Notification of the right to request a hearing, including the 
    procedures to
    
    [[Page 35672]]
    
    be followed, and to seek judicial review of any final administrative 
    decision assessing a civil penalty.
        (g) Hearings. (1) Except where the right to request a hearing is 
    deemed to have been waived as provided in paragraph (c)(4) of this 
    section, the person served with a notice of assessment may file a 
    written request for a hearing with the adjudicatory body specified in 
    the notice. The person shall enclose with the request for hearing a 
    copy of the notice of assessment, and shall deliver the request, as 
    specified in the notice of assessment, personally or by registered or 
    certified mail (return receipt requested).
        (2) Failure to deliver a written request for a hearing within 45 
    days of the date of service of the notice of assessment shall be deemed 
    a waiver of the right to a hearing.
        (3) Any hearing conducted pursuant to this section shall be held in 
    accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
    penalty assessed shall be determined in accordance with this part, and 
    shall not be limited by the amount assessed by the Federal Land Manager 
    under paragraph (f) of this section or any offer of mitigation or 
    remission made by the Federal Land Manager.
        (h) Final administrative decision. (1) Where the person served with 
    a notice of violation has accepted the penalty pursuant to paragraph 
    (c)(4) of this section, the notice of violation shall constitute the 
    final administrative decision;
        (2) Where the person served with a notice of assessment has not 
    filed a timely request for a hearing pursuant to paragraph (g)(1) of 
    this section, the notice of assessment shall constitute the final 
    administrative decision;
        (3) Where the person served with a notice of assessment has filed a 
    timely request for hearing pursuant to paragraph (g)(1) of this 
    section, the decision resulting from the hearing or any applicable 
    administrative appeal therefrom shall constitute the final 
    administrative decision.
        (i) Payment of penalty. (1) The person assessed a civil penalty 
    shall have 45 calendar days from the date of issuance of the final 
    administrative decision in which to make full payment assessed, unless 
    a timely request for appeal has been filed with a U.S. District Court, 
    as provided in Section 7(b)(1) of the Act.
        (2) Upon failure to pay the penalty, the Federal Land Manager may 
    request the Attorney General to institute a civil action to collect the 
    penalty in a U.S. District Court for any district in which the person 
    assessed a civil penalty is found, resides, or transacts business. 
    Where the Federal Land Manager is not represented by the Attorney 
    General, a civil action may be initiated directly by the Federal Land 
    Manager.
        (j) Other remedies not waived. Assessment of a penalty under this 
    section shall not be deemed a waiver of the right to pursue other 
    available legal or administrative remedies.
    
    
    Sec. 700.831  Civil penalty amounts.
    
        (a) Maximum amount of penalty. (1) Where the person being assessed 
    a civil penalty has not committed any previous violation of any 
    prohibition in Sec. 700.807 or of any term or condition included in a 
    permit issued pursuant to this part, the maximum amount of the penalty 
    shall be the full cost of restoration and repair of archaeological 
    resources damaged plus the commercial value of archaeological resources 
    destroyed or not recovered.
        (2) Where the persons being assessed a civil penalty has committed 
    any previous violation of any prohibition in Sec. 700.807 or of any 
    term or condition included in a permit issued pursuant to this part, 
    the maximum amount of the penalty shall be doubled the cost of 
    restoration and repair plus double the commercial value of 
    archaeological resources destroyed or not recovered.
        (3) Violations limited to the removal of arrowheads located on the 
    surface of the ground shall not be subject to the penalties prescribed 
    in this section.
        (b) Determination of penalty amount, mitigation, and remission. The 
    Federal Land Manager may assess a penalty amount less than the maximum 
    amount of penalty and may offer to mitigate or remit the penalty.
        (1) Determination of the penalty amount and/or a proposal to 
    mitigate or remit the penalty may be based upon any of the following 
    factors.
        (i) Agreement by the person being assessed a civil penalty to 
    return to the Federal Land Manager archaeological resources removed 
    from the New Lands or Indian lands;
        (ii) Agreement by the person being assessed a civil penalty to 
    assist the Federal Land Manager in activity to preserve, restore, or 
    otherwise contribute to the protection and study of archaeological 
    resources on the New Lands or Indian Lands.
        (iii) Agreement by the person being assessed a civil penalty to 
    provide information which will assist in the detection, prevention, or 
    prosecution of violations of the Act or this part;
        (iv) Demonstration of hardship or inability to pay, provided that 
    this factor shall only be considered when the person being assessed a 
    civil penalty has not been found to have previously violated the 
    regulations in this part;
        (v) Determination that the person being assessed a civil penalty 
    did not willfully commit the violation.
        (vi) Determination that the proposed penalty would constitute 
    excessive punishment under the circumstances.
        (vii) Determination of other mitigating circumstances appropriate 
    to consideration in reaching a fair and expeditious assessment.
        (2) When the penalty is for a violation on Indian lands, the 
    Federal Land Manager shall consult with and consider the interests of 
    the Indian landowner and the Indian tribe having jurisdiction over the 
    Indian lands prior to proposing to mitigate or remit the penalty.
        (3) When the penalty is for a violation which may have had an 
    effect on a known Indian tribal religious or cultural site on the New 
    Lands, the Federal Land Manager should consult with and consider the 
    interests of the affected tribe(s) prior to proposing to mitigate or 
    remit the penalty.
    
    
    Sec. 700.833  Other penalties and rewards.
    
        (a) Section 6 of the Act contains criminal prohibitions and 
    provisions for criminal penalties. Section 8(b) of the Act provides 
    that archaeological resources, vehicles, or equipment involved in a 
    violation may be subject to forfeiture.
        (b) Section 8(a) of the Act provides for rewards to be made to 
    persons who furnish information which leads to conviction for a 
    criminal violation or to assessment of a civil penalty. The Federal 
    Land Manager may certify to the Secretary of the Treasury that a person 
    is eligible to receive payment. Officers and employees of Federal, 
    State, or local government who furnish information or render services 
    in the performance of their official duties, and persons who have 
    provided information under Sec. 700.831(b)(1)(iii) shall not be 
    certified eligible to receive payment of rewards.
        (c) In cases involving Indian lands, all civil penalty monies and 
    any item forfeited under the provisions of this section shall be 
    transferred to the appropriate Indiana or Indian tribes.
    
    
    Sec. 700.835  Confidentiality of archaeological resource information.
    
        The Federal Land Manager shall not make available to the public 
    under subchapter II of chapter 5 of title 5 of the United States Code 
    or any other provision of law, information concerning the nature and 
    location of any archaeological resource, with the following exceptions:
        (a) the Federal Land Manager may make information available, 
    provided
    
    [[Page 35673]]
    
    that the disclosure will further the purposes of the Act and this part, 
    or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c) without 
    risking harm to the archaeological resource or to the site in which it 
    is located.
        (b) The Federal Land Manager shall make information available, when 
    the Governor of any State has submitted to the Federal Land Manager a 
    written request for information concerning the archaeological resources 
    within the requesting Governor's state; provided that the request 
    includes:
        (1) The specific archaeological resource or area about which 
    information is sought.
        (2) The purpose for which the information is sought; and
        (3) The Governor's written commitment to adequately protect the 
    confidentiality of the information.
    
    
    Sec. 700.837  Report.
    
        Each Federal Land Manager, when requested by the Secretary of the 
    Interior, shall submit such information as is necessary to enable the 
    Secretary to comply with section 13 of the Act.
    
    
    Sec. 700.839  Permitting procedures for Navajo Nation lands.
    
        (a) If the lands involved in a permit application are Indian lands, 
    the consent of the appropriate Indian tribal authority or individual 
    Indian landowner is required by the Act and the regulations in this 
    subpart.
        (b) When Indian tribal lands are involved in an application for a 
    permit or a request for extension or modification of a permit, the 
    consent of the Indian tribal government must be obtained. For Indian 
    allotted lands outside reservation boundaries, consent from only the 
    individual landowner is needed. When multiple-owner allotted lands are 
    involved, consent by more than 50 percent of the ownership interest is 
    sufficient. For Indian allotted lands within reservation boundaries, 
    consent must be obtained from the Indian tribal government and the 
    individual landowner(s).
        (c) The applicant should consult with the Office concerning 
    procedures for obtaining consent from the appropriate Indian tribal 
    authorities and submit the permit application to the Office that is 
    responsible for the administration of the lands in question. The Office 
    shall ensure that consultation with the appropriate Indian tribal 
    authority or individual Indian landowner regarding terms and conditions 
    of the permit occurs prior to detailed evaluation of the application. 
    The Indian tribal authority or individual Indian landowner shall have 
    30 days from the date of receipt of the consultation request from the 
    Office to respond to such request. Failure of the Indian tribal 
    authority or individual Indian landowner to respond timely to the 
    consultation request shall be deemed to be consent to the request. 
    Permits shall include terms and conditions requested by the Indian 
    tribe or Indian landowner pursuant to Sec. 700.817 of this part.
        (d) The issuance of a permit under this part does not remove the 
    requirement for any other permit required by Indian tribal law.
    
        Dated: June 25, 1996.
    Christopher J. Bavasi,
    Executive Director, Office of Navajo and Hopi Indian Relocation.
    [FR Doc. 96-16650 Filed 7-5-96; 8:45 am]
    BILLING CODE 6820-BB-M
    
    
    

Document Information

Effective Date:
8/7/1996
Published:
07/08/1996
Department:
Navajo and Hopi Indian Relocation Office
Entry Type:
Rule
Action:
Interim final rule with comment period.
Document Number:
96-16650
Dates:
This rule is effective August 7, 1996.
Pages:
35666-35673 (8 pages)
PDF File:
96-16650.pdf
CFR: (20)
25 CFR 700.801
25 CFR 700.803
25 CFR 700.805
25 CFR 700.807
25 CFR 700.809
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